Assessing the risk of coronavirus: what can employers ask employees?
Employers are required to ensure employees’ actual safety, which results from the employer’s basic obligation to provide for safe and hygienic working conditions. It is difficult to take these actions without basic information about potential sources of risk. Therefore, an employer has the right to ask its employees whether they were in regions with a higher level of risk (e.g. in China or Italy).
The basis for processing such information will be article 6(1) (f) of the GDPR, which authorises the processing of personal data to fulfill a legal obligation on the administrator: here, ensuring safe and hygienic working conditions.
Referral for a medical examination
The Polish Labour Code does not provide for direct referrals for additional medical examinations in the event of suspected illness. However, according to article 229.4 of the Labour Code, an employer may not allow an employee to work without a current medical certificate stating that there are no contraindications to work in a given position. This is valid unless an event occurs during this period that may indicate a change in the employee’s state of health. In this case, the medical certificate of fitness for work becomes obsolete and the employer is obliged to remove the employee from work and refer him or her for a medical check-up.
Of course, the change in the employee’s state of health must be real and result from the employer’s observations.
If an employee is to be directed to a place where the risk of contracting a disease is particularly high, he or she can refuse to go on the trip, indicating that the conditions of work performance do not comply with appropriate health and safety conditions and pose a threat to his or her health.
Provision of protection measures
Employers are obliged to provide employees with free personal protective equipment against the effects of hazardous and harmful to health factors occurring in the work environment and to inform them about the ways of using this equipment. However, just being afraid of coronavirus infection at work is not enough to implement such measures: the employer must determine whether there is actually a risk of infection in the given work environment. If it is concluded that there is, the employer decides the type of protective measures to be used. Employees are obliged to use them. An employer cannot allow employees to work without these measures.
At present, however, apart from, for example, medical personnel or border services, it is difficult to imagine workplaces in Poland where there will be a real risk of coronavirus.
With the exception of overdue leave and notice periods, employers cannot put employees on forced leave. In other cases, the employee’s consent for the leave is needed. This means that if an employee has no overdue leave and has, for example, returned from an area with a higher risk of infection, the employer cannot unilaterally put the employee on leave. Also unilateral exemption from the obligation to work seems very unlikely to be acceptable.
One way of isolating employees is remote work from home or another place, for example in the form of telework, occasional work or the use of a so-called ‘home office’. Each of these forms of remote working has its own rules. Getting an employee to work remotely requires the employee’s consent and cannot be imposed unilaterally by the employer.